People ex rel. Charles v. DeAngelo

263 A.D.2d 796, 694 N.Y.S.2d 505, 1999 N.Y. App. Div. LEXIS 8258

Opinion

—Appeal from a judgment of the Supreme Court (Monserrate, J.), entered August 26, 1998 in Broome County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner, having pleaded guilty to the crime of criminal sale of a controlled substance in the fifth degree, commenced this proceeding for a writ of habeas corpus while still being held in the Broome County Jail,

Footnotes

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* contending, inter alia, that he did not receive effective assistance of counsel and that the People knowingly presented false identification testimony to the Grand Jury, thereby rendering the indictment jurisdiction-ally defective. Supreme Court dismissed the petition and we affirm. Given that the issues could be raised on a direct appeal or in a motion pursuant to CPL 440.10, we find that habeas corpus relief is unavailable (see, People ex rel. McCallister v McGinnis, 249 AD2d 637, 638; People ex rel. Moore v Miller, 244 AD2d 735, lv denied 91 NY2d 808; People ex rel. Murray v Bartlett, 234 AJD2d 828, lv dismissed 89 NY2d 1002). Moreover, absent circumstances warranting a departure from traditional orderly procedure, the application for a writ was properly denied (see, People ex rel. Rodriguez v Kuhlmann, 239 AJD2d 721, lv denied 90 NY2d 808).

Cardona, P. J., Mercure, Crew III, Carpinello and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.

Petitioner is currently serving his sentence in the custody of the Department of Correctional Services.